Citation Nr: 9829540
Decision Date: 10/01/98 Archive Date: 10/13/98
DOCKET NO. 94-13 261 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUES
1. Entitlement to service connection for residuals of a neck
injury.
2. Entitlement to service connection for a bilateral
shoulder disorder.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America,
Inc.
WITNESSES AT HEARING ON APPEAL
Appellant and D.A.S.
ATTORNEY FOR THE BOARD
John Z. Jones, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1969 to February
1971. His DD 214 indicates that he served in Vietnam for
over one year, and was awarded several decorations, including
the Purple Heart and Combat Infantry Badge.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from a May 1993 rating decision of the St.
Louis, Missouri, Department of Veterans Affairs (VA) Regional
Office (RO).
This claim was previously before the Board and was remanded
to the RO in December 1996.
In May 1998, a VA hospital summary was received. The summary
shows that the veteran was admitted to the VA Medical Center
(VAMC) in Kansas City, Missouri that month when he became
violent at home. It is noted that evidence received prior to
transfer of records to Board of Veterans' Appeals after an
appeal has been initiated (including evidence received after
certification has been completed) will be referred to the
appropriate rating or authorization activity for review and
disposition. If the Statement of the Case (SOC) and any
prior Supplemental Statements of the Case (SSOC) were
prepared before the receipt of the additional evidence, a
SSOC will be furnished to the appellant and his or her
representative as provided in § 19.31, unless the additional
evidence received duplicates evidence previously of record
which was discussed in the SOC or a prior SSOC or the
additional evidence is not relevant to the issue, or issues,
on appeal. 38 C.F.R. § 19.37 (a). Following review of the
aforementioned evidence, it has been determined that the
additional evidence is not relevant to the issues on appeal.
Thus, in this case, the provisions of 38 C.F.R. § 19.37 are
not applicable.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he has chronic neck and bilateral
shoulder disabilities as a result of an injury in service in
Vietnam. Specifically, the veteran asserts that he jammed
his neck when his head hit a bank while diving for cover from
enemy fire.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claims for service connection for
residuals of a neck injury and a bilateral shoulder disorder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained.
2. Clear and convincing evidence has been presented showing
that the veteran’s current neck disability is not related to
his military service.
3. Clear and convincing evidence has been presented showing
that the veteran’s current shoulder disability is not related
to his military service.
CONCLUSIONS OF LAW
1. Residuals of a neck injury were not incurred or
aggravated during the veteran’s active duty service.
38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R.
§§ 3.303, 3.304 (1998).
2. A bilateral shoulder disability was not incurred or
aggravated during the veteran’s active duty service.
38 U.S.C.A. §§ 1110, 1154, 5107 (West 1991); 38 C.F.R.
§§ 3.303, 3.304 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board finds that the appellant's claims are
“well-grounded” within the meaning of 38 U.S.C.A. § 5107.
As such, the VA has the duty to assist the veteran in the
development of facts pertinent to his claim. 38 U.S.C.A.
§ 5107. Pursuant to the Board’s December 1996 remand, the
RO, by letter dated in February 1997, requested that the
veteran furnish the names, addresses, and approximate dates
of treatment for all VA and non-VA health care providers who
had treated him for the disabilities at issue since service.
To date, no response has been received from the veteran. In
April 1997, the National Personnel Records Center (NPRC)
forwarded “morning reports” for the period June 1970, and
advised that there were no “sick reports” issued in 1970.
In June 1997, the RO sent the veteran a letter informing him
of the need to pay a copying fee for any sick reports from
the National Archives and Records Administration. To date,
the veteran has not responded with either the records, or
indication that he would pay the fee. Accordingly, the Board
is satisfied that all relevant facts have been properly and
sufficiently developed, and that no further assistance to the
veteran is required to comply with the statutory duty to
assist. 38 U.S.C.A. § 5107.
Factual Background
The service medical records are completely negative for any
complaint of or treatment for injury to the neck or
shoulders.
The report of VA examination in April 1971 is silent for any
complaints or findings regarding the neck or shoulders. VA
examination in September 1978 shows that the veteran had full
range of motion of the neck with complaint. There were no
complaints or findings regarding the shoulders.
VA medical records, including hospitalization reports, dated
from 1990 to 1992 show that in September 1990 the veteran was
seen for complaints of head and neck pains and referred for a
neurological screen. The diagnosis was tension headaches.
In August 1992, the veteran was seen for cervical pain and
left shoulder pain. On physical examination, he had full
range of motion, but had pain in all planes. X-ray of the
cervical spine revealed spondylosis. He was instructed on
cervical traction use at home. An entry in October 1992
indicates that the veteran reported that he had an automobile
accident in 1970 which resulted in a neck injury.
On VA joints examination in December 1992, the veteran denied
having had any complications of his shoulders specifically.
Physical examination of his shoulders demonstrated no
swelling or gross deformity. Shoulder ligaments were grade
0. Range of motion was: flexion to 180 degrees bilaterally,
abduction to 170 degrees bilaterally, external rotation to 60
degrees bilaterally, and internal rotation on the right to
the T10 level and on the left to the T12 level. It was noted
that X-rays of the shoulders from July 1982 were reviewed and
were essentially normal. The diagnosis was normal shoulder
examination.
On VA spine examination in December 1992, the veteran
reported a 15-year history of neck pain. He stated that it
had been progressively worse over the last couple of years
and occasionally caused him headaches and paresthesias down
both arms. Currently, he had no complaint of any of these
symptoms but said that they could come on at any time;
specifically increasing his range of motion could precipitate
these problems. Physical examination demonstrated no
postural abnormalities of his neck. He had no fixed
deformities and the musculature of the neck was well
developed. He had forward flexion of his chin to his chest
and backward extension of approximately 60 degrees. His left
lateral side bending came to about 4 cms. from his shoulder
and his right lateral side bending was to his shoulder.
Rotation to the left and to the right was symmetric at 80
degrees. He had no evidence of pain but stated that in the
next couple of hours he thought that he would get muscle
spasm because of the significant range of motion of his neck.
He did not have any weakness or sensory deficits in his lower
extremities. An MRI of the cervical spine demonstrated an
incidental bulging of the C5-6 disk centrally. The diagnosis
was nonspecific neck pain, unknown etiology.
VA medical records dated in February and March 1993 show that
the veteran was provided cervical trigger point injections
for severe neck pain and shoulder pain. The records note
that he reported having experienced neck pain for a period of
greater than 20 years. He described the pain as a burning
aching pain which begins in the center of the neck and
radiated down into both shoulders and usually into the upper
arms. It was noted that X-rays of the cervical spine in July
1992 revealed old compression deformities in the C5 region
and secondary spondylosis shown by anterior and posterior
hypertrophic spurring.
In a June 1993 statement, G.E., a chiropractor, reported that
he had seen the veteran that month for chief complaint of
neck and shoulder pain. According to the veteran, the pain
began many years ago while serving as a Ranger in Vietnam.
He reported that he “jammed his neck when his head hit a
bank diving into for cover from gunshots.” Since that time,
the veteran had had progressive recurrent pain in the neck
radiating into either shoulder. Physical examination
revealed percussive tenderness at C7 and C5. The
chiropractor noted that the veteran appeared to be suffering
from a chronic cervical sprain injury.
In an August 1993 statement, Dr. J.V., a VA physician,
asserted that the veteran was not involved in an automobile
accident in 1970.
In September 1993, the veteran testified that he has had
persistent pain ever since he slammed his head into an
embankment and was bloodied. He stated that there was no
motor vehicle accident in 1970 causing such disability and
that the only source of the symptoms must be the trauma
during service. D.S., a combat buddy, also provided his
testimony and observations as to the combat event supporting
the veteran’s testimony. See September 1993 hearing
transcript.
VA medical records show that the veteran was brought to the
emergency room at the Kansas City VAMC in May 1995 for
complaint of neck and bilateral shoulder pain radiating down
the arm the past two weeks. He reported that he originally
injured his neck in Vietnam. He was admitted for further
evaluation and treatment. On discharge in June 1995, the
pertinent diagnoses were chronic neck pain and cervical
spondylosis. A July 1995 VA discharge summary shows that
during hospitalization for an unrelated illness the veteran
reported that he sometimes felt pain in his neck because of
trauma of the head in 1970 when he was in France. A November
1995 VA discharge summary reflects that the veteran’s past
medical history was significant for chronic neck pain and
cervical spondylosis. X-rays revealed minor degenerative
arthritis of the cervical spine. The pertinent diagnosis was
chronic neck pain.
On VA general medical examination in January 1996, the
veteran complained of chronic neck and left upper extremity
pain. He reported that he had a rocket land behind him in
1970 in Vietnam, blowing him approximately 10 feet and
resulting in diffuse neck pain with radiation to the left
upper extremity. Physical examination revealed slight to
moderate posterior neck pain with radiation to the left upper
extremity diffusely. Neck range of motion testing was
limited by his neck pain. Upper extremity range of motion
testing was within normal limits, but painful. The veteran
had slight diffuse left shoulder discomfort. Cervical spine
X-rays showed mild bulging annulus at C3-C4 and minimal
effacement of the ventral thecal sac at C3-C4 and C5-C6 due
to posterior osteophytes. The pertinent diagnosis was status
post cervical sprain with left upper extremity radiculopathy,
slight to moderately disabling.
On VA joints examination in January 1997, the veteran
complained of severely disabling pain in his neck and left
shoulder which was continuous but worse on his attempting to
use his left arm particularly above his shoulder. He
reported that he sustained a shrapnel injury to his head in
1970 in Vietnam, that the blow knocked him into a trench, and
that he had had increasing pain in his neck and left shoulder
since then. Objective findings included severe tenderness on
palpation in the anterior aspect of the left
acromioclavicular joint and the upper angle of the left
scapula. On range of motion testing, the right shoulder had
complete external rotation of 45 degrees and 160 degrees of
abduction. The left shoulder had varying degrees of external
rotation from 25 degrees to 45 degrees. Abduction could be
accomplished to 160 degrees with some persistence. It was
noted that the shoulders had essentially a normal degree of
internal rotation. X-rays of the cervical spine revealed
some minor degenerative joint disease changes particularly
around C2-C3 and C4-C5. X-rays of the shoulders were
negative. VA spine examination that month resulted in a
diagnosis of minor degenerative joint disease changes in the
cervical spine area with severe over-riding and unexplained
symptomatology.
Received in April 1997 were morning reports from NPRC showing
that the veteran was treated in June 1970 for an unrelated
condition. The records do not show that the veteran was
treated for neck or bilateral shoulder injuries.
On VA joints examination in November 1997, the veteran
complained of pain in the neck and both shoulders. He stated
that while on active duty in Vietnam a cache of ammunition
exploded causing him to be thrown into a ditch at which time
he reportedly sustained injuries to his neck and shoulders.
He stated that he did not receive any medical treatment for
those specific injuries for several months. He did later
require hospitalization for ear problems and he stated that
at that time he mentioned his neck and shoulder problems.
However, he stated that he never received any type of
definitive treatment for any of the above areas while on
active duty. He stated that since leaving the military he
has been followed at both the VA hospital in Kansas City and
by private physicians for problems with his neck and
shoulders. He stated that he wore a cervical collar while
driving.
Physical examination of the cervical spine showed no point
tenderness or spasm. He was able to take his head and neck
through a full range of motion without apparent pain. He was
also able to take both shoulders through a full range of
functional motion without pain. There was no point
tenderness or spasm about either shoulder. The diagnoses
were degenerative disc disease of the cervical spine and
shoulder pain of unknown etiology. The examiner commented
that upon reviewing the veteran’s claims file, it was noted
that at the time of the veteran’s separation physical in
January 1971 he had no complaints referable to his neck or
shoulders. The examiner further stated that while the
veteran did have degenerative arthritis in the spine there
was nothing objectively on physical examination, X-ray or in
reviewing his medical records to substantiate his claim that
the neck problem is related to his time on active duty. In a
similar fashion, based on a review of the records, there was
nothing to indicate that the veteran’s shoulder problems were
in any way related to his tour of active duty.
Analysis
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110.
Under 38 C.F.R. § 3.303(a), pertaining to principles relating
to service connection, service connection means that the
facts shown by the evidence, established that a particular
disease or injury resulting in disability was incurred
coincident with service, or if preexisting such service, was
aggravated therein. This may be accomplished by
affirmatively showing inception or through the application of
statutory presumptions. Service connection will also be
granted either when the disorder is shown to be chronic in
service or when the veteran can show continuity of
symptomatology since service. 38 C.F.R. § 3.303(b).
As noted above, the veteran's receipt of the Purple Heart
confirms his service in combat with the enemy during a period
of war. In the case of a veteran who was engaged in combat
with enemy forces during a period of war, the VA shall accept
as sufficient proof of service connection such satisfactory
lay or other evidence of service incurrence if consistent
with the circumstances, conditions, or hardships of such
service, notwithstanding the fact that there is no official
record of such incurrence. 38 U.S.C.A. § 1154(b); 38 C.F.R.
§ 3.304(d). Service connection of such a disease or injury
may be rebutted by clear and convincing evidence to the
contrary. 38 U.S.C.A. § 1154(b).
In Collette v. Brown, 82 F.3d 389, 392-93 (Fed. Cir. 1996),
the United States Court of Appeals articulated a three-step
sequential analysis to be performed when a combat veteran
seeks benefits under the method of proof provided by 38
U.S.C.A. § 1154(b). Initially, the VA must determine whether
the veteran has proffered "satisfactory lay or other evidence
of service incurrence or aggravation of such injury or
disease." If a veteran produces credible evidence that would
allow a reasonable fact-finder to conclude that the alleged
injury or disease was incurred in service, then the veteran
has produced "satisfactory evidence" to satisfy the first
step under the statute. This determination requires the
credibility of the veteran's evidence to be judged standing
alone and not weighed against contrary evidence.
In Caluza v. Brown, 7 Vet.App. 498, 510-11 (1995), the United
States Court of Veterans Appeals found that, in determining
whether documents submitted by a veteran constitute
"satisfactory" evidence under 38 U.S.C.A. § 1154(b), the VA
may properly consider "internal consistency, facial
plausibility, and consistency with other evidence submitted
on behalf of the veteran."
The VA must then determine if the proffered evidence is
"consistent with the circumstances, conditions, or hardships
of such service," again without weighing the veteran's
evidence with contrary evidence. Collette, 82 F.3d at 392-
93. If these two inquiries are met, the VA "shall accept"
the veteran's evidence as sufficient proof of service
connection, even if no official record of such incurrence
exists. At this point, a factual presumption arises that the
alleged injury or disease is service-connected. Id.
It is in the third step under Collette that the VA is to
weigh evidence contrary to that which established the
presumption of service connection. If the VA meets its
burden of presenting clear and convincing evidence to the
contrary, the presumption of service connection is then
rebutted.
Upon review, the Board notes that the service medical records
do not include any documentation pertaining to neck or
shoulder problems during the veteran’s active duty service.
The veteran argues, however, that his neck and shoulders were
injured in combat when ammunition exploded and threw him
head-first into a bunker, and after considering the
provisions of 38 U.S.C.A. § 1154(b), the Board finds that
such an injury is consistent with the circumstances,
conditions, and hardships of combat service. Hence, the
record does raise a presumption that service connection is
warranted for neck and bilateral shoulder disabilities.
Collette, 82 F.3d at 393. Significantly, however, the
presumption may be rebutted by clear and convincing evidence
to the contrary, 38 U.S.C.A. § 1154(b), and after reviewing
all of the evidence of record, the Board finds that the
presumption has been so rebutted.
In this regard, the Board notes that even assuming that the
veteran did incur neck and shoulder injuries in service, the
evidence shows that at separation from active duty in January
1971, the veteran was not shown to have any residual neck or
shoulder disabilities. Hence, the veteran is not shown to
have had chronic neck or shoulder disabilities from the
injuries. Moreover, the November 1997 VA examiner, after
reviewing and analyzing all the medical evidence of record,
concluded that the veteran’s neck and shoulder disabilities
were not related to his period of active service.
Accordingly, the Board must conclude that the presumption has
been rebutted, and that the preponderance of the evidence is
against a grant of service connection for neck and bilateral
shoulder disabilities. Hence, the benefits sought on appeal
are denied.
Finally, the Board considered the doctrine of reasonable
doubt, however, as the preponderance of the evidence is
against the appellant’s claims, the doctrine is not for
application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
ORDER
Entitlement to service connection for residuals of a neck
injury is denied.
Entitlement to service connection for a bilateral shoulder
disability is denied.
ROBERT E. SULLIVAN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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